G & G Preserves (Pvt) Limited v Themba Sibanda t/a Bit Resources PBC Quarry Mine & 2 Ors

### Preamble
1
HB 219/22
HC 1380/22
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G & G PRESERVES (PVT) LIMITED

Versus

THEMBA SIBANDA t/a BIT RESOURCES PBC QUARRY MINE

And

PROVINCIAL MINING DIRECTOR N.O.

And

MINISTER OF MINES & MINING DEVELOPMENT N.O.

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 29 JULY 2022 & 4 AUGUST 2022

Urgent chamber application

Ms. M. Sibanda with Ms. N. Sandi for the applicant

T. Tavengwa for the 1st respondent

DUBE-BANDA J:

This is an urgent application. The applicant seeks a provisional order couched in the following terms:

Terms of the final order sought

That you show cause to this Honourable Court if any, why a final order should not be made in the following terms:

That the 1st respondent shall cease and desist all mining and blasting activities on property known as Lot B Lower Rangermore held Title Deed No. 1490/2005 as described in DT 2596/73.

That the 1st respondent is hereby directed to remove all equipment from the property known as Lot B Lower Rangemore held under Title Deed No. 1490/2005 as described in DT 2596/73 failing which the Sheriff is hereby directed to move 1st respondent’s equipment from the property.

That the 1st respondent is hereby directed to vacate property known as Lot B Lower Rangemore held under Title Deed No. 1490/2005 within 24 hours of granting of this order.

Costs on an attorneys (sic) scale.

Interim relief granted

1st respondent be and is hereby directed to stop all mining and blasting activities on property known as Lot B Lower Rangemore held under Title Deed No. 1490/2005 as described in DT 2596/73 pending the finalisation of case No. 1928/21.

Pending finalisation of case No. 1928/21 1st respondent be restricted to their original location.

Costs of suit on client attorney (sic) scale.

The application is opposed by the 1st respondent. The 2nd and the 3rd respondents filed a notice indicating that they are not opposed to this application and will abide by the decision of the court.

This application will be better understood against the background that follows. The Applicant is the registered owner of an immovable property known as the remaining extent of Lot B of Lower Rangemore. It has a development permit from the relevant authorities and it is servicing the land. The 1st respondent contends that he was granted authority to conduct quarrying activities on the applicant’s land and has been on the land from 2017. In case number HC 1430/17 (G & G Preserves (Pvt) Ltd v Themba Sibanda t/a Bit Resources PBC Quarry Mine HB 86/20) this court per MABHIKWA J ruled that Themba Sibanda the 1st respondent herein was in unlawful occupation of G & G Preserves (Pvt) Ltd farm and issued an order the net effect of which was to evict the former from the remaining extent of Lot B Lower Rangemore, Umguza. Themba Sibanda appealed this judgment to the Supreme Court. In Themba Sibanda v G & G Preserves (Pvt) Ltd SCB 38/20 the appeal was dismissed with costs of suit.

Subsequent to the dismissal of the appeal in SCB 38/20 the 1st respondent herein in Themba Sibanda v Provincial Mining Director (N.O) HC 571/21 sought and obtained (per TAKUVA J) an order from this court couched in the following terms:

The respondent (Provincial Mining Director) be and is hereby ordered to immediately furnish applicant (Themba Sibanda) with a certificate of registration for 1 x 150 blocks of quarry at the Remaining Extent Lot B Rangemore, Umguza, over the area specified on the survey report dated 30th November 2016.

The applicant, after receipt of the certificate of registration referred to in (1) above, be and is hereby authorised to resume mining activities on the 1 x 150 blocks of quarry at the Remaining Extent Lot B Rangemore, Umguza, over the area specified on the survey report dated 30th November 2016.

The litigants were back in court in HC 1928/21. HC 1928/21 was motivated by the fact that G & G Preserve (Pvt) Ltd, the applicant herein had on the 2nd December 2021 obtained a writ of execution in pursuance of the judgment in HC 1430/17 (Preserves (Pvt) Ltd v Themba Sibanda t/a Bit Resources PBC Quarry Mine HB 86/20). It is clear from the judgment in HC 1928/21 (Sibanda v G & G Preserve (Pvt) Ltd HB 20/220) per KABASA J that following the order in HC 571/21 the Provincial Mining Director granted 1st applicant a certificate of registration number 025192BA on the 29 November 2021. In HC 1928/21 (Sibanda v G & G Preserve (Pvt) Ltd HB 20/22) this court issued an order couched in the terms:

That pending the return date, the execution of the writ of eviction in HC 1430/17 issued on the 2nd December 2021 by the Registrar of the High Court be and is hereby stayed.

The 2nd respondent (Sheriff of the High Court) be and is hereby interdicted from ejecting the applicant from the Remaining Extent Lot B Lower Rangemore, Umguza as per the notice of removal dated 7th December 2021.

The applicant contends that what has prompted it to approach this court on a certificate of urgency is that the 1st respondent has continued his unlawful activities on its land. The respondent and his employees are continuing to blast the land that has been serviced for residential stands. It is contended that the blasting in the applicant’s land is hindering the continuation of the housing project on the property. It is contended further that on the 20 July 2022 contractors went to the property to continue with road servicing and found that the 1st respondent’s employees had blasted the land they were supposed to service. It is against this background that the applicant has launched this application seeking the relief mentioned above.

The 1st respondent took preliminary objections which were subject of argument in this matter. He contended that the draft order was incompetent; that this application is a review of the order of this court in HC 571/21 and this court has no jurisdiction to review its own decisions; and that this application is not urgent and must be struck off the roll of urgent matters. I heard argument only in respect of the preliminary objections and reversed judgment.

The 1st respondent contends that this matter is not urgent. It was submitted that this application was filed on 27 July 2022 and it is incorrect that the cause of action arose on the 18 July 2022. It is said the applicant has always known as at 20 December 2021 that 1st respondent would resume his mining operations on the land. This contention is anchored on a letter dated 20 December 2021 addressed to the 1st respondent’s legal practitioners by the applicant’s legal practitioners. In the letter the applicant’s legal practitioner expressed knowledge of the order in HC 571/21. 1st respondent contends that the time to act was on the 20 December 2021 and not now. It was argued that this is a case of self-created urgency and not the kind of urgency anticipated by the rules of court.

The applicant contended that the application is urgent. It was submitted that the urgency was not based on the fact that 1st respondent was carrying out mining activities on the property, but that on the 18 July 2022 he moved to where road and sewer works are being carried out. In support of urgency it was contended further that 1st respondent is destabilising land designated for residential stands and that it would be impossible to build houses on blasted land. It was submitted that 5000 households would be affected by 1st respondents activities as no houses can be built on land blasted through mining activities.

In assessing whether an application is urgent the courts have in the past considered various factors, including, among others: the consequence of the relief not being granted; whether the relief would become irrelevant if it is not immediately granted; and whether the urgency was self-created. See: Kuvarega v Registrar General & Anor; New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2019] ZACC 27. Further to pass the urgency test, applicant must show that there is an imminent danger to existing rights and the possibility of irreparable harm. See: General Transport & Engineering (Pvt) Ltd & Ors v Zimbank1998 (2) ZLR 301; Document support Centre (Pvt) Ltd v Mapuvire 2006(1) ZLR 240 (H); Dextiprint Investments (Pvt) Ltd v Ace Property Investment company HH 120/2002; Madzivanzira & Ors v Dexprint Investments (Pvt) Ltd & Anor 2002 (2) ZLR 316 (H); Seventh Day Adventist Association of Southern Africa v Tshuma & Ors HB 213-20.

In considering whether this application is urgent I have to look at the interim relief sought by the applicant. The interim relief sought is that 1st respondent be directed to stop all mining and blasting activities on property known as Lot B Lower Rangemore pending the finalisation of case No. 1928/21, and that he be restricted to his original location. This is the order that the applicant seeks at this stage.

This court in HC 571/21 ordered that the 1st respondent be immediately furnished with a certificate of registration for 1 x 150 blocks of quarry at the Remaining Extent Lot B Rangemore, Umguza, and that after receipt of the certificate of registration 1st respondent be authorised to resume mining activities on the 1 x 150 blocks of quarry at the Remaining Extent Lot B Rangemore, Umguza. The order in HC 571/21 is extant. The applicant seeks that the 1st respondent be stopped from all mining and blasting activities on property known as Lot B Lower Rangemore. The net effect of what the applicant seeks from this court is to set aside the order in HC 571/21. I say so because once the interim relief sought is granted the 1st respondent will be evicted from the property known as Lot B Lower Rangemore, Umguza. Not some part thereof, but from the whole property. The contention that the 1st respondent is sought to be evicted from a portion that he moved to on 18 July 2022 where road and sewer works are being carried out, is not supported by the papers before me and particularly the interim relief sought. If the interim relief sought is granted it will set-aside the order in HC 571/21. This court has neither jurisdiction nor competence to set-aside its own order.

Furthermore the applicant attempted to invoke the order in HC 1430/17 to evict the applicant from the remaining Extent Lot B Lower Rangemore, Umguza. This court in HC 1928/21 stayed such eviction pending the return date. The interim relief in HC 1928/21 is extant. In the interim relief the applicant seeks an order stopping all mining and blasting activities on property known as Lot B Lower Rangemore. The net effect of the interim relief sought by the applicant is to discharge through then back door as it were the interim relief in HC 1928/21. What is also conspicuous is that the applicant has not taken procedural steps provided for in the rules of court to have the interim relief granted in HC 2928/21 properly discharged.

The contention that the urgency is not based on the fact that 1st respondent was carrying out mining activities on the property, but that on 18 July 2022 he moved to where road and sewer works are being carried out is of no moment. I say so because the interim relief sought by the applicant seeks the eviction of the 1st respondent from the whole property i.e. Lot B Lower Rangemore. If such an interim relief is granted, the net effect of it would be that his court would have set aside its order in HC 571/21 (per TAKUVA J) and discharged its interim relief in HC 1928/21 (per KABASA J). I repeat that in general this court has neither the jurisdiction nor the competence to set aside its own orders.

I take the view that it must have been very clear to the applicant that following the order in HC 571/21 the 1st respondent would resume his mining activities at Lot B Lower Rangemore. The applicant says it was not cited in HC 571/21, but does not say when it became aware of the order and what it has done with the order it considers “was mischievously sought”. Further the applicant contends that the certificate of registration issued to the 1st respondent refers to Dunstal Farm near Khami Ruins, true as it might be but it does not make this application urgent. I say so because in the interim relief in HC 1928/21 the Sheriff was specifically interdicted from ejecting the 1st respondent from the Remaining Extent Lot B Lower Rangemore, Umguza. The interim relief in HC 1928/21 is extant.

For a litigant to successfully motivate the court to hear its matter on an urgent basis, it must show that its matter is out of the ordinary. This court must be on the guard of litigants who may try to take advantage and abuse the urgency procedure in order to get a procedural advantage over other litigants that have to wait in queue for their matters to he heard. In casu there is nothing new that has triggered this application.  After the granting of HC 571/21 and the interim relief in HC 1928/21 the applicant must have known that the 1st respondent would carry out mining activities at Lot B Lower Rangemore. It did not take any steps available to it to protect its interest. It waited until the day of reckoning. This matter is not urgent and it cannot be afforded a hearing in the roll of urgent matters.

This is not a case where if the court fails to act the applicant may well be within its rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible to his prejudice. See: Documents Support Centre P/L v Mapuvire 2006 (1) ZLR 232 (H) 243G. The interim relief the applicant is seeking will not become irrelevant if it is not immediately granted.

This is not the kind of urgency anticipated by the rules of court. On the facts of this case and the background facts I take the view that this application borders on the abuse of the process of this court. It falls to be removed from the roll with an appropriate order of costs.

Having answered the question of urgency in favour of the 1st respondent, I consider it unnecessary for me to deal with the other points taken by the 1st respondent. I need to mention though that the applicant made an oral application for the amendment of the interim relief sought, which application was opposed but because of the decision I have come to it will be unnecessary to deal with the issue of the amendment.

What remains to be considered is the question of costs. The general rule is that in the ordinary course, costs follow the result. I am unable to find any circumstances which persuade me to depart from this rule. Accordingly, the applicant must bear the 1st respondent’s costs.

In the result I order as follows:

The point in limine on urgency is upheld.

This application is not urgent and is struck off the roll of urgent matters with costs of suit.

Sandi & Matshakaile Attorneys applicant’s legal practitioners

Mutuso, Taruvinga & Mhiribidi 1st respondent’s legal practitioners